Front Page Titles (by Subject) CHAPTER I: Of the Causes of War; and first, of the Defence of Persons and Goods. - The Rights of War and Peace (2005 ed.) vol. 2 (Book II)
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CHAPTER I: Of the Causes of War; and first, of the Defence of Persons and Goods. - Hugo Grotius, The Rights of War and Peace (2005 ed.) vol. 2 (Book II) 
The Rights of War and Peace, edited and with an Introduction by Richard Tuck, from the Edition by Jean Barbeyrac (Indianapolis: Liberty Fund, 2005). Vol. 2.
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Of the Causes of War; and first, of the Defence of Persons and Goods.
I.What Causes of War may be termed justifiable.I. 1. Let us now proceed to the Causes of War, I mean such as are properly said to justify it;1 for there are some Motives of Advantage, sometimes different from just Occasions, that determine us to take up Arms. Polybius2 accurately distinguishes these two Sorts of Causes, the one from the other, and both from the3Beginning of the War, or that which gave Occasion to the first Acts of Hostility, as was the Stag4 wounded by Ascanius, whence arose the War between Turnus and Aeneas. But tho’ there be a manifest Difference between those three Things, yet the Terms made Use of to<128> express them are commonly confounded. Thus Livy, in the Speech which he puts in the Mouth of the Rhodians, calls Beginnings what we call justifying Reasons.5You Romans,6 (say the Deputies) profess to believe that the Success of your Wars are happy, because they are just; and you glory not so much in the Victory that determines them, as in the7Beginnings, or because you do not under take them without Reason. In which Sense Aelian stiles them ἀρχὰς πολέμων; and Diodorus Siculus, treating of the War of the Lacedemonians with the Aelians, calls them προϕάσεις and ἀρχὰς.
2. And these justifying Reasons are indeed our proper Subject here, where it will be no Ways impertinent to mention that of Coriolanus in Dionysius,8Let it be your principal Care, that the Cause of your War be just and honest. And Demosthenes,9As in the Building of Houses, Ships, &c. the Foundations ought to be firm and solid: So all our Actions and Enterprizes whatever, should be founded on the substantial Basis of Truth and Justice. Thus too Dion Cassius,10We ought chiefly to look to the Justice of our Cause; for with that we have Room to conceive good Hopes of the Success of our Arms, and without it we can depend on nothing, even tho’ at first Things should succeed to our Wishes. So also says Tully,11Those Wars are unjust that are undertaken without Cause. And in another Place12 he blames Crassus, because13 he had passed the Euphrates, When there was not the least Grounds for a War.
3. What has been said touching the Justice of the Cause, ought to be observed in publick Wars, as well as in private. And Seneca with Reason complains of the Difference that is put in that respect,14We punish, says he, Murders committed between private Persons: But do we act in like Manner with regard to Wars, and the Slaughter of whole Nations? It is a glorious Crime, Avarice and Cruelty reign there without Restraint.—Barbaritiesare authorised by the Decrees of the<129> Senate, and Orders of the People; and what is prohibited in private15Persons is enjoined by the State. ’Tis true, those Wars that are commenced by publick Authority have certain Effects of Right, as the Sentences of Judges: Of which hereafter: But are therefore not less criminal, if begun without a just Foundation. Thus was Alexander, for unjustly invading the Persians, and other Nations, deservedly reproached by the Scythians as a Highwayman, in Curtius,16 and by Seneca17 and Lucan18 branded with the opprobrious Names of Thief and Robber; by the Indian Magi he was taxed19 with criminal Ambition, and by a Pirate was told he was the20same himself. So Justin, speaking of his Father Philip, said,21 that two Kings of Thrace were dethroned by the Fraud and Villany of a Thief. To which may be referred that Passage of St. Austin,22What are Kingdoms without Equity, but so many great Robberies? So that of Lactantius,23That Conquerors being dazzled with a vain Glory, miscall their Vices by the Name of Virtue.
4. There is no other reasonable Cause of making War, but an Injury received: So says St. Austin,24The Iniquity of one Side, that is, the Injury received, furnishes a just Occasion of War. Iniquitas in this Place is taken for Injuria; as if we should use the Greek Word ἀδικία instead of ἀδίκημα. So the Roman Herald,25I declare, and call you to witness, says he, that that People has acted unjustly, and does not make us due and proper Satisfaction.
II.Justifiable Causes of War are, when for Defence; for the Recovery of one’s Property, or one’s Debt; or for the Punishment of an Offence committed.II. 1. Now, as many Sources as there are of judicial Actions, so many Causes may there be of War. For where the Methods of Justice cease, War begins. Now in Law there are Actions for Injuries not yet done, or for those already committed. For the First, When Securities are demanded against a Person that has threatened an Injury, or for the indemnifying of1 a Loss that is apprehended; and other Things included in2 the Decrees of the superior Judge, which prohibited any Violence. For the Second, that Reparation may be made, or Punishment inflicted; two Sources of Obligation, which3Plato, and before him Homer,4 have judiciously<130> distinguished. As for Reparation, it belongs to what is or was properly our own, from whence5real and some6personal Actions do arise, or to what is properly our due, either by Contract, by Default, or by Law. To which also we may refer those Things which are said to be due by a7Sort of Contract, or a8Sort of Default: From which Heads all other personal Actions are derived. The Punishment of the Injury produces Indictments and9publick Judgments.
Baldus ad Leg. 2. Cod de serv. & aqua. n. 71. Wilh. Matt. de Bello justo, & licito.2. Most Men assign three just Causes of War, Defence, the Recovery of what’s our own, and Punishment: Which three you have in Camillus’s Declaration against the Gauls.10Omnia quae defendi repetique & ulcisci fas est: Whatever may be defended, recovered, or revenged; in which Account, if the Word Recovered be not taken in a greater Latitude than usually it is, it will not include the suing for that which is our Due; which suing was not omitted by Plato, when he said,11That War is not only undertaken when one is insulted, or plundered; but also when imposedupon, or treated in any fraudulent Manner. To which agrees that of Seneca,12It is a very equitable Saying, and founded on the Law of Nations, Pay what you owe. And it was a Part in the Form used by the Roman Herald,13That they neither gave, paid, nor did, what they ought to have given, paid, and done: And as Salust has it in his History,14I demand my own by the Law of Nations. Saint Austin,15 when he said, that Those Wars which are to revenge our Injuries, are<131> generally termed16Just: He took the Word Revenge in a general Sense, which implies all Removal, Cessation, Abolition, and Reparation of Injuries, which appears by the Sequel, where there is not so much an Enumeration of the Parts, as an Illustration by Examples. So, says he, That Nation or City may be invaded, that shall neglect to punish the bad Actions of those that depend on it, or to restore what’s unjustly taken from another.
3. Conformable to this Principle of natural Equity did the Indian King (as Diodorus17 informs us) accuse Semiramis, that she had commenced War against him, without having received any Manner of Injury. Thus the Romans argued18 with the Senones, that they ought not to make War on a People that had given them no Provocation. Aristotle observes,19 that Men usually make War on those who first have done some Injury. So Curtius20 speaking of the Abian Scythians, They were reputed the most just of the Barbarians; they never took up Arms, but in their own Defence:21 The first Cause therefore of a just War, is an Injury, which tho’ not done, yet threatens our Persons or our Estates.
III.War in Defence of Life, lawful.III. We have before observed, that if a Man is assaulted in such a Manner, that his Life shall appear in inevitable Danger, he may not only make War upon, but very justly destroy the Aggressor; and from this Instance,1 which every one must allow us, it appears that such a private War may be just and lawful.Sylvest. verbo Bellum, p. 1. n. 3. & p. 2. It is to be observed, that this Right of Self-Defence, arises directly and immediately from the Care of our own Preservation, which Nature recommends to every one, and not from the Injustice or Crime of the Aggressor; for if the Person be no Ways to blame, as for Instance, a Soldier who2carries Arms with a good Intention;Bartol. ad Leg. 3 Dig. de just. & jure. Bald. in l. 1. Cod. unde vi. Bann. 2, 2. Q. 10. Art. 10. Dub. ult. Soto, l. 4. Disp. 5. Art. 10. Val. 2, 2. Disp. 5. Q. 10. p. 7. or a Man that should mistake me for another; or one distracted,3 or delirious, (which may possibly happen) I don’t therefore lose that Right that I have of Self-Defence: For it is sufficient that I am not obliged to suffer the Wrong that he threatens to do me, no more than if it was a Man’s Beast that came to set upon me.
IV. 1. It is a Matter of Dispute, whether an innocent Person,1 who happens to be in our Way, and hinders that Defence or Escape that is absolutely necessary for the Preservation of our Lives, may be run through, or crushed in Pieces. There are some, even among Divines, who think it lawful.IV.But only against the Aggressor. And certainly, if we have regard to Nature only, the Engagement we lye under to maintain Society, is of less Moment than the Preservation of ourselves: But the Law of Charity, especially the Evangelical, which has put our Neighbour upon2 a Level with our Selves, does not permit it.<132>
Card. Q. 33. l. 1. Pet. Navar. l. 2. c. 3. n. 147. Cajetan. 2. 2. Art. 67. Qu. 2.2. It was well observed of Thomas Aquinas, if apprehended rightly, that in our own Defence we do not purposely kill another; not but that it may be sometimes lawful, if all other Means prove ineffectual, to do that purposely by which the Aggressor may die; but we take this Course, as the only Means left to preserve our selves, and not as the principal End proposed, just as in the Judgment of Criminals condemned to Death: For he that is actually attacked, ought even then to chuse rather to do any Thing else, that may stop the Fury of the Aggressor, or disable him,Second. second. Qu. 64. Art. 1. than to secure himself by killing him.
V.In a present and certain Danger, but not in such a one as is only Matter of Opinion.V. 1. But here ’tis necessary that the1 Danger be present, and as it were, contained in a Point. I grant, if a Man takes Arms, and his Intentions are visibly to destroy another, the other may very lawfully prevent his Intentions; for as well in moral as in natural Things, there is no Point but what admits of some Latitude: But they are highly mistaken, and deceive others, who admit that any Sort of Fear gives a Right to take away the Life of another. ’Tis very justly observed by Cicero,2 that one frequently commits Injustice, by attempting to hurt another, in Order to avoid the Evil which he apprehends from him. So Clearchus in Xenophon,3 καὶ γὰρ ὀίδα, &c. I have known many People moved either by some false Report, or by Suspicion, who for Fear of others, and to be before hand with them, have done most horrible Injuries to those, who never would have offered, nor ever designed to offer them any Hurt in the World. So Cato, in his Oration for the Rhodians,4Shall we ourselves be first guilty of that which we alledge they intended to do? It was excellently said by Aulus Gellius,5That a Gladiator’s Condition is such, that he must either kill or be killed; but human Life is not under such unhappy Circumstances, that we are necessitated to do an Injury to prevent the receiving one. And as Tully in another Place no less admirably expresses it,6Whoever maintained, or to whom can it be allowed without exposing the Life of every one to the greatest Dangers, that a Man may lawfully destroy another, through a Pretence of Fear, lest the other should one Day kill him? To which this Passage of Euripides may be applied,7
Ἐι γὰρ σ’ ἔμελλεν, &c.
Your Husband, say you, would have killed you: You should have staid till he actually attempted it. So Thucydides,8What is to come is yet uncertain, nor should any one be so far transported with the Apprehensions of what may happen, as to engage in a declared Enmity, accompanied with present Acts of Hostility. The same Author, where he eloquently describes the Evils that Faction had brought upon the States of Greece,9 blames those People, because It was thought commendable in a Man to<133> injure another first, for Fear of being injured himself. A very shameful Thing, as10Livia calls it in Dion Cassius. Livy says,11 that By taking Precautions against what we apprehend from another, we give Occasion first to apprehend something from us,12and we do to others the Injury we would repel, as if there were a Necessity either of doing or receiving Wrong. One may apply to such as act in that Manner, that of Vibius Crispus, so much celebrated by Quintilian,13Who gave you an Authority thus to fear?
Bann. q. 64. Art. 7. Dub. 4. Bald. in Leg. 17. Cod. De Liberali Causa, & in. l. 1. Cod. unde vi, Less. l. 2. c. 9. Dub. 8. Soto, l. 5. qu. 1. art. 8.2. Tho’ we were certainly informed, that a Person has conspired against us, or designs to lay an Ambush for us, or is preparing to poison us, to bring a false Accusation against us, to suborn false Witnesses, and to corrupt the Judges: Yet whilst we have nothing to fear for the present, on the Part of that Person, I maintain that we cannot lawfully kill him; if either such a Danger can be possibly avoided any other Way, or even if it does not then sufficiently appear that it may not be avoided. For Time gives us frequent Opportunities of Remedy, and there may many Things happen, as the Proverb has it,14betwixt the Cup and the Lip. There are however both Divines and Lawyers, who are a little more indulgent in this Affair: But the other Opinion, which is certainly the safer and better, has also its Partisans.
VI.For the Preservation of a Limb or a Member. Card. in Clem. l. 5. tit. 4. De Homicid. &c. leg. si furiosus, &c. Covarr. ib. part 4 § 1 n. 2. Sylvest in Verbo Homicidium, 3. q. 4.VI. But what shall we then say of the Danger of1losing a Limb, or a Member? When a Member, especially if one of the principal, is of the highest Consequence, and almost equal to Life itself; and ’tis besides doubtful whether we can survive the Loss; I am of Opinion, if there be no Possibility of avoiding the Misfortune, the Aggressor may be lawfully killed.
VII. That the same may be done on Account of1Chastity, can scarce be here any Matter of Dispute; when not only the2Opinion of the World, but even the3Law of GOD,VII.Especially in Defence of Chastity. Sylvest. in Verbo Homicidium, c. 3. q. 4. Pro Milon. c. 4. Declamat. Tribunus Marianus. Vit. Mar. p. 413. Ed. Wech. has made it equivalent to Life itself. So Paulus the Law-<134>yer,4 that to defend ones Chastity, tho’ with the Death of him who would violate it, is but an Act of Justice. We have an Example of this in Cicero, Quintilian, and Plutarch, in the Person of one of Marius’s Tribunes, who was killed by a Soldier. Among Women5 who have vindicated their Chastity, Heliodorus records that Act of Heraclea, which he calls ἀμύνης νόμον, &c.6A just Defence of her injured Honour.
VIII. Tho’ some agree with me in what I observed before,1 that tho’ I may lawfully kill him who attempts to take away my Life, ’tis more commendable to die one’s self than to kill another:VIII.Self-Defence may sometimes be omitted. Soto ubi supra, Sylvest. de verbo Bellum, p. 2. n. 2. Yet they will only grant it upon this Condition, that we2 except Persons that are useful to many others. But it seems to me not very safe to maintain, that all those whose Lives are of Advantage to others, are under such an Obligation as that, so contrary3 to Patience; and therefore I think this ought to be limited to those only whose particular Office and Duty it is to defend others, such as those who are ingaged to guard Travellers; or the Governors of the State, to whom we may apply that of Lucan,4Since the Life and Safety of so many Nations depend on your Preservation, and so large a World has established you for their Head; it would be Cruelty in you to be willing to die.
IX.Self-Defence against a Person, very useful to the Publick. A Crime from the Law of Charity. Soto ubi supra.IX. 1. It may happen, on the contrary, that because the Aggressor’s Life may be serviceable to many, it would be criminal to take it from him; and this not only by the Divine Law, both of the Old and New Testament, of which we have spoke before, when we shewed that the King’s Person is sacred and inviolable, but also by the very Law of Nature. For natural Right, considered as a Law,1 does not only respect what we call expletive Justice, but comprehends the Acts of other Virtues, as of Temperance, Fortitude, and Prudence; so that in certain Circumstances they are not only honest, but of an indispensable Obligation. Besides that, as to what we were now speaking of,2Charity does also oblige us.
Lib. 1. Contr. illust. 18.2. Neither am I ever the less of this Opinion, on Account of what Vasquez asserts, that A Prince who attacks the Life of an innocent Person, is ipso facto no more a Prince. A Proposition not only absurd, but even very dangerous too. For as the Right of Property, so the Right of Sovereignty is not lost3 by an evil Action, unless<135> it be decreed by some particular Law; but what Law was there ever enacted, that Kings should be dethroned for an Injury done to a private Person? Surely there is no such Law yet in Being, nor I believe ever will, for what a Confusion would it make? But what Vasquez lays down as the Foundation for this, and other Conclusions of the like Nature, is, that All Governments regard the Good of the People, and not that of the Prince; which, were it universally true, would be nothing to the Purpose. For a Thing is not destroyed,4 as soon as the Advantage of it ceases in some Respect. What he further urges, that every Man does only for his own Sake wish well to the Commonwealth, and that therefore he ought to prefer his own Good to that of the Publick, is likewise a weak Argument. ’Tis true every Man for his own Sake wishes well to the Commonwealth, but not for his own Sake only, it is also5 for the Sake of others.
3. The most judicious Philosophers have with Reason rejected the Opinion6 of those who think that Friendship is only founded on Indigence; for it is evident we are prompted to it by natural Inclination: And to prefer the Advantage of many Persons to my own single Interest, is what Charity often advises, sometimes commands. So Seneca,7’Tis no Wonder that Kings and Princes, and in general all the Governors of the State, whatever Title they bear,8should be loved by every one, and even more than private Persons, to whom we are nearly related; for if ’tis agreed by all wise Men, that the publick Good should rather be consulted than any private Interest whatever; it follows, that nothing should be dearer to us than the Person of him on whom the Welfare of All depends. St. Ambrose says,9 that Every one finds more Pleasure in saving his Country, than in extricating himself out of Difficulties. So the same Seneca;10 Callistratus and Rutilius, the former an Athenian and the latter a Roman, refused to be recalled from Exile, because it was better that two Persons should suffer unjustly, than that their Return should expose the State to any Danger.
X.That it is not lawful for Christians to murder a Man for a Box on the Ear, or such other slight Injury, or to avoid running away.X. 1. There are some of Opinion, that if a Man is in Danger of receiving a Box on the Ear, or any Injury of the like Nature, he has a Right of revenging so small a Crime, even by the Death of him that attempts it.1 If Regard be here only had to expletive Justice, I don’t deny it; for tho’ there be no Manner of Proportion betwixt Death, and so slight an Injury; yet, whoever shall attempt to wrong me, gives me from that Time an unlimited2 Right, that is, a certain Mo-<136>ral Power against him in infinitum; upon a Supposition, that I am not otherwise capable of diverting such an Injury from my own Person. Neither does Charity of itself lay us under an indispensible Obligation of sparing the Offender in that Case; but the Gospel does expressly forbid this, for CHRIST commanded his Apostles rather to receive a Blow than to hurt their Adversary.Soto, ubi supra. Navarr. c. 15. n. 3. Sylvest. in Verbo Homicidium, 1. q. 5. Lud. Lopez, c. 62. Ubi supra. How much more then does he forbid the Killing of a Man to avoid the Blow? By this Example we are admonished to beware of what Covarruvias advances on this Topick, that The Ideas of natural Right being within the Extent of human Knowledge, it cannot be said, that any Thing is permitted by natural Reason, which is not at the same Time permitted before GOD, who is Nature itself.3 For GOD, who is so the Author of Nature, that he can, whenever he pleases, act above Nature, has a Right also of prescribing Laws to us, even in those Things which are in their own Nature free and indifferent. How much more then can he command us to do that which is naturally honest, tho’ not obligatory?
Navarr. c. 15. Henr. de Irreg. c. 11. Victor. de jure belli, p. 5.2. It is therefore very surprising, that when GOD has so manifestly declared his Will in the Gospel, we should find Divines, nay Christian Divines, who maintain, that ’tis not only lawful to kill a Man, in Order to avoid a Blow, but even after it is received, if he that gave it endeavours to escape: For then, say they, one ought to recover one’s Honour: Which to me seems as well contrary to Reason as to Piety. For Honour being the Opinion of some Excellency or Merit, he that can put up such an Affront, expresses a particular Excellency of Temper; and therefore, rather adds to his Honour than detracts from it. But if some Persons, through a false Notion of Honour, call this Virtue of Patience by a wrong Name, and so turn it into Ridicule, it is not material: For those false Judgments do not alter the Nature of the Thing, nor diminish its Value; nor did the primitive Christians only think so, but even the Philosophers, who said, that It argued a Meanness of Soul in Man, not to be able to bear an Affront. As we have elsewhere observed.
Soto, art. 8. ubi sup. q. 5. Doct. in Leg. 3. Dig. de Just. & Jure, & in Leg. 1. Cod. Unde vi. Vasquez ub. sup. c. 18. n. 13, 14. Sylvest. in Verbo Bellum. p. 2. n. 4. In Addit. ad Alex. Cons. 119.3. From hence it appears too, that we ought not to approve what many Casuists assert, that even by the Divine Law, a Man in his own Defence may kill another; (indeed if we consider the Law of Nature only, ’tis beyond all Manner of Dispute) nay, tho’ at the same Time he may escape from him without any Danger: Because, say they, to turn one’s Back is mean and reproachful, and below a Gentleman: Whereas in Reality ’tis no Ways a Disgrace, but only a vain Imagination, which ought to be despised by all that have a Regard to Virtue and Wisdom; in which Matter I am not a little pleased, that amongst Lawyers I have the excellent Charles Du Moulin of my Sentiments. Now what has been said of a Box on the Ear, and making one’s Escape, may be equally applied to all other Cases where Man’s true Honour is not injured. But what if a Man shall report any Thing of us, by which that Reputation we have with good Men, may possibly suffer? There are those who assert, that a Man may lawfully kill such Persons too;Pet. Navarr. l. 11. c. 3. n. 376. but this is not only extreme false, but highly repugnant to the Laws of Nature; for such an Action is no proper Means of preserving one’s Character.
XI.Murther in Defence of our Goods permitted by the Law of Nature.XI. We now proceed to those Injuries that affect our Estates or Possessions;1 and here, if we have Regard to expletive Justice, I must own, that for the Preservation of our Goods ’tis lawful, if there’s a Necessity for it, to kill him that would seize upon them. For the Inequality betwixt the Goods of one Man and the Life of another is made up, by the Difference betwixt the favourable Cause of the innocent Person, and the odious Cause of the Robber, as was before observed: From whence it follows, that if we have Regard only to this Right, I may shoot that Man who is making off with my Effects, if there’s no other Method of my recovering them. So Demosthenes in his Oration against Aristocra-<137>tes:2Is it not, says he, highly unjust, and contrary not only to written Laws, but also to that which is common to all Mankind, that I shall not be suffered to use Force against him that robs me, and so commits an Act of Hostility against me? Nor does Charity, by Way of Precept, (if we consider it abstractedly from all Human and Divine Laws) disallow of this; unless in those Things that are in themselves too inconsiderable to be regarded; which Exception some Authors do very justly subjoin.
XII.How far permitted by the Law of Moses. Soto ubi supra. Mathesilanus Notabil. 135. Jas & Gom. in Inst. de Act. princ. Covar. ubi sup. § 1. n. ib. decimo., Less. Dub. 11. n. 68. Covar ubi sup. August. cit. in C. si perfodiens. De Homicid. Lessius, D. c. 9. Dub. 11. n. 66.XII. 1. But let us see in what Sense the1Mosaick Law2 is to be understood, to which agrees that3 old Law of Solon, which Demosthenes urges against Timocrates, from whence4 the Law of the Twelve Tables was taken, and5Plato’s Maxim, in his ninth de Leg. all which consent in this, that they make a Distinction betwixt a Night and a Day Thief. But it is not agreed upon what Reason that Difference is founded. There is some who think it only regards this, that by Night it cannot be discovered, whether the Person who comes in upon you be a Thief or an Assassin, and therefore he ought to be treated as the latter; and others think that it turns upon this, that as the Thief cannot be known in the Obscurity of the Night, one sees no other Way of recovering one’s Effects; but to me it seems, that those Legislators had neither the one nor the other of these Reasons in View. They rather intended to shew, that6 the Life of no Man was to be taken away merely on the Account of one’s Goods, which would certainly happen; if, for Instance, I should shoot a Thief7 who is running away, to recover by his Death what he had stoln from me: But that if I am any Ways in Danger of my own Life, ’tis lawful then to secure myself, tho’ it be at the other’s Peril. Neither is it any Objection to me, that I brought myself into this Extremity, by endeavouring either to keep or recover my own, or to apprehend the Thief; for in all this there’s nothing can be laid to my Charge, who am only concerned in a lawful Act. Neither do I any Injustice to any Man, since I only make use of my own Right.
2. The Difference therefore betwixt a Night and a Day Thief, consists in this, that in the Night it is not an easy Matter to have Witnesses; and therefore, if the Thief should be found dead, we readily give Credit to a Person who declares that he slew him in his own Defence, since he was armed with some dangerous Instrument. For this the Hebrew Law supposes, where it treats of a Thief taken,<138> כמחתרת in the Act of Piercing, or as some better translate it, with a stabbing Instrument; in which Sense also the most learned Rabbies have expounded that Word in Jer. ii. 34. I am inclined the more in Favour of this Opinion by the Law of the Twelve Tables, which forbids the Killing of a Thief in the Day-time, unless he defends himself with some Weapon.8 It is therefore by this presumed, that a Night Thief defended himself with some Weapon. Under the Name of Arms or Weapon, an Iron, a Club, or a Stone are included; as Cajus9 observes on this Law. On the contrary, ’tis the Opinion of Ulpian, that what is said of Killing a nocturnal Thief with Impunity,10 is to be understood of killing him, when we could not secure our Goods and spare him, without running the Hazard of our own Lives.
3. This therefore is that Presumption which is allowed in favour of him who has killed a Thief by Night; but if Witnesses should chance to be present, by whom Proof could be made, that the Person who thus slew the other, was far from being in Danger of his own Life, then should we presume no longer in his Favour, but account him guilty of Murder. It is, besides this, provided by the Law of the Twelve Tables, that whoever shall surprize a Thief, either by Day or Night,<139> shall signify it by an Outcry, (as we learn from Cajus11 ) in Order that the Magistrates or Neighbours may come in to his Assistance, or be Witnesses of the Fact: But because, as Ulpian12 observes, on the above-mentioned Passage of Demosthenes, this cannot be so easily effected in the Night as in the Day, therefore we give more Credit to the Person who asserts his Danger then.
Deut. xxii. 23, &c.4. Much like this is the Jewish Law in Case of a Rape, which if committed in the Field, the Woman’s bare Word was Evidence sufficient; but13 if in the City the Case was otherwise, it being presumed that she ought to have called for Assistance, and might have had it. To this we may add, that tho’ all other Circumstances were equal, yet one cannot so well discover what happens in the Night, nor know so well the Nature and Greatness of the Danger, and consequently, is more frightened than one would be at what happens in the Day-time. The Law therefore, as well of the Jews as of the Romans, prescribes the same Thing to the People that Charity enjoins, I mean, not to kill any Person merely upon account of Theft, but only when one runs the Hazard of his Life, by endeavouring to preserve his Effects. And as Moses Maimonides observes, No private Person is permitted to kill another, except in defence of that which, if once lost, is irreparable, as Life and Chastity.
XIII.Whether permitted at all, and how far, by the Gospel.XIII. 1. What shall we then say of the Gospel in this Affair? Does it allow the same that the Law of Moses did? Or does it, as it is in other Things more perfect than the Mosaick Law, require something more of us in this Respect also? In my Opinion it is not to be questioned but that it does. For if CHRIST has commanded, rather to part with a Cloak or a Garment than contend about it; and1 St. Paul, rather to suffer Wrong than to go to Law about it; tho’ this be a Dispute where no Blood is shed: How much more should even Things of greater Moment be given up, rather than a Man’s Life should be taken from him, who is the Image of GOD, and descended from the common Father of all Mankind? Wherefore, if there’s any Possibility of preserving our Goods, without running the Hazard of committing Murder, we may certainly do so; but if not, we should rather be the Losers, unless it be of such Things on which not only our own Life, but even that of our Family depends, and which, by the Methods of Justice, can never be recovered, because perhaps the Thief is not known, and we are in some Hopes that the Affair may be concluded without any such Bloodshed.
Soto ubi sup. Lessius, Dub. 11. n. 74. Sylv. in Verb. Bellum, 2. n. 3.2. I know that almost all the modern Lawyers and Divines maintain, that in Order to save one’s Goods it is permitted to kill him that would rob us, and that they even extend this Permission beyond the Limits prescribed by the Jewish and<140> Roman Laws; for they say, if the2 Thief runs away after he has taken any Thing, the Proprietor may pursue and kill him. But I do not doubt but the Opinion I declare for was that of the primitive Christians; and St. Austin was fully persuaded of it, when he said,3How can Men be guiltless in the Sight of GOD, who even for Things that a Christian ought to despise, shall embrue their Hands in human Blood? Indeed in this, as in other Cases,4 Christianity is fallen from its primitive Purity, and the Interpretation of the Gospel is by Degrees accommodated to the Customs of the present Age.Panorm. c. 11. De Homic. Less. ubi supra. In former Times the Clergy at least were obliged to follow the antient Maxim; but5 at Length they also were exempted from all Censure on this Account.
XIV.Whether the Civil Law permitting Murder in one’s own Defence, gives a Right to the Fact, or only dispenses with the Punishment of it. Explained by a Distinction.XIV. ’Tis a Question with some Persons, Whether the Civil Law, which is vested with a Power of Life and Death, if in any Case it shall allow that a Thief may be killed by a private Person, does not so far excuse the Fact, as to exempt it altogether from being a Crime. Which in my Opinion is scarce to be admitted of. For first, the Law has no Power over the Life of any Subject upon every Offence, but for Crimes only of so heinous a Nature as to deserve Death. Now, I think the Opinion of Scotus very probable, who affirms that it is not lawful to condemn any to Death, but1 for those Crimes that were punished2 with Death by the Law of Moses, or for those that appear equal to these, upon impartial Examination. Nor does it appear, that the Knowledge of the Divine Will, which alone can quiet the Consequence, can, in an Affair of so high a Consequence as this is, be otherwise had, than from this Law only, which certainly has no where sentenced a Thief to Death. Besides, the Law neither does nor ought to give a Power to any Man, to kill him privately who has deserved Death, unless in Crimes of the most flagrant Nature; for else it would be needless to have Courts of Justice. Therefore, when the Law acquits that Man who has killed a Thief, it may be understood to take off the Punishment, but not to give him3 a real Right to the Act itself.
XV.When a Duel, or single Combat, may be lawful.XV. From what has been said it appears, that in two Cases we may justify a single Combat: The first is, when the Aggressor1 permits the other Person to defend himself, being otherwise determined to kill him if he does not fight. The other, when a King or Magistrate shall doom two Malefactors, both equally guilty of Death, to combat together. In this last Case, each of the Criminals may lawfully use the Means offereds him, for endeavouring to save his Life: But he who gave the Commandment, does not so equitably discharge his Duty; since it were better, if he thought it sufficient for one only to suffer, that a Lot2 should determine the Choice.
XVI.Of Defence in a publick War.XVI. What we have hitherto said, concerning the Right of defending our Persons and Estates, principally regards private Wars; but we may likewise apply it1 <141> to publick Wars, with some Difference. For first, in a private War, the Right of Defence is as it were, only momentary, and ceases as soon as one can apply to a Judge: Whereas a publick War, arising only between those that acknowledge no common Judge, or when2 the Exercise of Justice is interrupted; the Right of Defence has here some Continuance, and is perpetually maintained, by fresh Injuries and Damages received. Besides, in a private War we have only a Regard to our own Defence, but the supreme Powers have not only a Right of Self-Defence, but of3 revenging and punishing Injuries. Whence it is, that they may lawfully prevent an Insult which seems to threaten them, even at some considerable Distance; not directly, (for the Injustice of that we have shewed already) but indirectly, by punishing a Crime that is only begun: Of which we shall have Occasion to treat4 in another Place.
XVII.War only to weaken a neighbouring Power, not lawful. Alberic. Gentil. l. 1. c. 14.XVII. But I can by no Means approve of what some Authors have advanced, that by the Law of Nations it is permitted to take up Arms to reduce the growing1 Power of a Prince or State, which if too much augmented, may possibly injure us. I grant, that in deliberating whether a War ought to be undertaken or not, that Consideration may enter, not as a justifying Reason, but as a Motive of Interest. So that where we have any other just Cause for making War, it may for this Reason too be thought prudently undertaken.Bald. in Leg. 3. De Rerum divis. And this is all that the Authors before cited do in Effect say; but to pretend to have a Right to injure another, merely from a Possibility that he may injure me, is repugnant to all the Justice in the World: For such is the Condition of the present Life, that we can never be in perfect Security. It is not in the Way of Force, but in the Protection of Providence, and in innocent Precautions, that we are to seek for Relief against uncertain Fear.
XVIII.Nor in him who himself gave the just Occasion for a War.XVIII. 1. Neither can I admit another Maxim of those Authors, namely, that even those who have given just Cause to take up Arms against them, may lawfully defend themselves; because, say they, there are few who are content only to proportion their Revenge to the Injuries they receive. But such a Suspicion of what is uncertain, gives no Man a Right to oppose Force to a just Attack, no more than a Criminal can plead a Right of defending himself against the publick Officers of Justice,Alberic. Gentil. l. 1. c. 13. Cast. l. 5. de Justitia. who would apprehend him, by Order of the Magistrate, on a Pretence that his Punishment may be greater than his Crimes deserve.
2. But he who has offended another,1 ought first to offer him such a Satisfaction, as by the Judgment of any honest Man shall be thought sufficient; and if that be refused, he may in Conscience defend himself. Thus Hezekiah being threatned with a War by the King of Assyria,2 Kings xviii. 7, 14, and xix. for not observing the League that his Ancestors had made, acknowledged his Fault, and left it to that King to nominate what Recompence he should make him; which done, and being afterwards invaded with a powerful Army, he then trusted to the Justice of his Cause, defended himself, and, by the Assistance of the most high GOD, became Successful. So Pontius, the Samnite, having made a full Restitution to the Romans, for what had been unjustly taken from them, and delivered up him who was the Author of the War, said,2Do not imagine that our Embassy has been fruitless: We<142> have thereby expiated the Violation of the Treaty, and prevented whatever we had Reason to apprehend from the Wrath of Heaven. I am persuaded that the Gods, who were pleased that we should be reduced to the Necessity of restoring what was required of us by vertue of our Engagements, were not pleased that the Romans should so haughtily reject the Satisfaction we offered them.—What more, ye Romans, do I owe you? What ought I to do to repair the Infraction of the Alliance, and to appease the Gods, who were the Witnesses and Guarantees of it? To whose Judgment should I submit, in Regard to a Punishment capable of satisfying your Resentment, and expiating the Crime of my Infidelity? There is no Nation, nor private Person, that I refuse on this Head. So when the Thebans3 had offered to the Lacedemonians all that they could in Justice require, and they were yet for pushing Matters further, Aristides said, that the good Cause4 passed then from the Party of the latter to that of the former.
[1 ]See Chap. XXII. of this Book, and Pufendorf, B. VIII. Chap. VI. § 3, 4.
[2. ]In the third Book of his History, where he calls the Motives of Advantage, which induce a Nation to engage in a War, Ἀιτίαι, Causes, and the Reasons urged for justifying such a Step, Προϕάσεις, Pretexts, both which, as he observes, precede the Ἀρχὴ, the Beginning of the War, that is, the actual Execution of the Design formed, or the first Acts of Hostility, Cap. VI. He then applies this to the War between the Grecians and Persians, and that made on the Romans by Antiochus. In the former two Causes were alledged, viz. the experienced Weakness of the Barbarians, on the memorable Retreat of the ten thousand, who passed through all Asia, while none dared venture to attack them; and King Agesilaus’s Expedition in Asia, which confirmed Philip of Macedonia in that Opinion of the Persians, and put him on making Preparations for attacking them. But his Pretext was, that he designed to revenge the Injuries the Grecians had received from the Persians; and the War did not actually begin ’till his Son Alexander marched into Asia. The Causes given for the latter War, was the Resentment of the Etolians, who in Revenge for the Marks of Contempt given them by the Romans, engaged Antiochus to espouse their Interests. This was followed by a Pretext of freeing the Grecians from the Yoke of the Romans, against whom they animated all the Cities of Greece, and the War begun when Antiochus landed at Demetrias with a Fleet. All this may be read in the Original, Cap. VI. VII.
[3. ]This is what Virgil calls Exordia pugnae, Aeneid. VII. 40. Grotius.
[4. ]Aen. VII. 481, &c.
[5. ]Lib. XLV. Cap. XXII. Num. 5.
[6. ]Certainly no Nation was so long remarkable for a careful Enquiry into the Justice of the Wars they undertook. Polybius, as quoted by Suidas observes, that The Romans were particularly cautious never to attack their Neighbours, nor appear the Aggressors; but always let the World see they took Arms in their own Defence. Under the Word Ἐμβαινε. This Dion Cassius shews in his beautiful Comparison of the Romans with Philip of Macedon and Antiochus. Excerpt. Peiresc. (p. 314, &c.) The same Historian elsewhere says, that The Antients (that is, the Romans) had nothing so much at Heart, as that the Wars in which they engaged were just. Excerpt. Legation. And to come to no Resolution without mature Deliberation. Excerpt. Peiresc. (p. 341.) Grotius.
[7. ]In the same Sense Elian uses the Words Πολέμων ἁι ἀρχαί. Var. Hist. Lib. XII. Cap. LIII. Diodorus of Sicily, treating of the War between the Lacedemonians and Eléans, calls them Προϕάσεις κὰι ἀρχαί, Lib. XIV. (Cap. XVIII. p. 404. Edit. H. Steph.) and Procopius, Δικαιώματα, Justifications. Gothic. Lib. III. Cap. XXXIII. See the Beginning of Chap. XXII. of this Book. The Emperor Julian makes Use of the Word ὑπόθεσις. Orat. II. De Laudib. Constantii, (p. 95. Edit. Spanheim). Grotius.
[8. ]Antiq. Rom. Lib. VIII. Cap. VIII. p. 468. Edit. Oxon. (486 Sylburg).
[9. ]Olynthiac II. p. 7. Edit. Basil. 1572. The Orator there speaks of the military Expeditions of Philip of Macedon.
[10. ]Lib. XLI. p. 189. Edit. H. Steph.
[11. ]Illa Bella injusta sunt, quae sunt sine causá suscepta. Thus our Author quotes the Passage, and in his Margin refers us to the third Book of Cicero’s Treatise De Republicâ. But I do not find those Words in the Fragments of that illustrious Roman’s lost Works; I see only a Thought which bears some Resemblance to it, preserved by St. Augustin, and taken from the same third Book, De Repub. A well regulated State enters into no War, but for making good its Engagements, or for its own Security. De Civit. Dei, Lib. XXII. Cap. VI.
[12. ]De finib. Bon. & Mal. Lib. III. Cap. XXII.
[13. ]Appian of Alexandria says, that The Tribunes of the People (ὁι Δήμαρχοι) opposed Crassus ’s Motion for making War on the Parthians, from whom no Offence had been received. (De Bello Civil. Lib. II. p. 723. Edit. Toll. 438 Steph.) And Plutarch relates, that several expressed their Dislike of attacking Men who not only had given no Provocation, but were even in Alliance (with the Romans). Vit. M. Crass. p. 552. Tom. 1. Edit. Wech.Grotius.
[14. ]Epist. XCV. p. 464. Edit. major Elzevir. 1672.
[15. ]The same Philosopher elsewhere says, that Some Enterprizes are esteemed glorious, which were looked on as Crimes, while the Execution of them could be hinder’d. De Irâ. Lib. II. Cap. VIII. See Seneca and St. Cyprian, as quoted B. III. Chap. IV. §5. Grotius.
[16. ]Lib. VII. Cap. VIII. Num. 19.
[17. ]He (Alexander) was from his Infancy a Robber and Plunderer of Nations, &c. De Benef. Lib. I. Cap. XIII. Justin Martyr says, The Power of those Princes, who prefer their own private Opinions to Truth, is just as great as that of Highwaymen in a Desart. Apol. II. And Philo the Jew calls such as are ambitious of Power, so many great Robbers, who disguise their Crimes under the specious and venerable Names of Sovereignty and Government. (De Decal. p. 763. Edit. Paris.)Grotius.
[18. ]Faelix Praedo; a fortunate Highwayman, Lib. X. Ver. 21.
[19. ]You are a Man, like others, with this Difference only, that busying yourself with Things which do not concern you, and animated by a criminal Ambition, you have left your own Kingdom, and traversed so much Ground, to torment yourself, and others.Arian. De Expedit. Alex. Lib. VII. Cap. 1. Edit. Gronov.
[20. ]Nonius Marcellus has preserved us this Expression in a Passage, which he quotes from the third Book of Cicero’s Treatise, De Repub. A Pirate being asked by Alexander, on what wicked Motive he infested the Sea; replied, on the same which puts you on infesting the whole World. In Voce Myoporo, p. 534. Edit. Mercer. See also St. Augustin, De Civit. Dei, Lib. IV. Cap. IV.
[21. ]Lib. VIII. Cap. III. Num. 15.
[22. ]De Civit. Dei. Lib. IV. Cap. IV.
[23. ]Instit. Divin. Lib. I. Cap. XVIII. Num. 8, 9. Edit. Cellar.
[24. ]De Civit. Dei, Lib. IV. The Words, as quoted by our Author, are, Iniquitas partis adversae justa Bella ingerit. They do not stand thus in the Book of St. Augustin here specified. But that Father, in Book XIX, says Iniquitas enim partis adversae justa bella ingerit gerenda Sapienti. Cap. VII. The Mistake proceeds from our Author’s copying Alberic Gentilis, De Jure Belli, Lib. I. Cap. VI. p. 49, &c. confounding this Passage with another, quoted by that Lawyer from B. IV. Chap. XV. where the Word Iniquitas is used in the same Sense, and on the same Subject.
[25. ]Livy, Lib. I. Cap. XXXII. Num. 10.
[1 ]Damni infecti. A Roman Law Expression, as are those which follow in this Division; where they are not, however, always used precisely in the Sense of the antient Lawyers, but accommodated to the general Notions of natural Law. See Digest. Lib. XXXIX. Tit. II. De damno infecto, & de suggrundis & protectionibus, &c.
[2. ]Interdicta ne vis fiat; or as the Roman Lawyers speak, Prohibitoria, quibus [Praetor] vetat aliquid fieri; veluti vim, sine vitio possidenti, vel mortuum inferenti, quo ei jus erat inferendi. That is, Prohibitories, by which [the Pretor] forbids the doing of any Thing, as offering Violence to a just Possessor, or to a Man that brings a dead Body into a Place where he had a Right to bring it. Instit. Lib. IV. Cap. XV. De Interdictis, §. 1.
[3. ]The Author here quotes Lib. IX. De Legib. and undoubtedly had that Passage in View, where the Philosopher says, Two Things are to be considered, the Injury, and the Damage; the latter is to be repaired by Laws, as far as is practicable. In Regard to the former, whether great or small, the Law is to direct, and oblige him never willingly to do such a Thing again. Pag. 862. Tom. II. Edit. H. Steph.
[4. ]Penelope’s Suitors made Ulysses an Offer of paying handsomely for what they had eat and drank in his House, and giving him what Quantity of Gold and Silver he desired. To which Ulysses replied, that, tho’ they should restore him all his Father’s Fortune and Effects, which were in their Hands, and even make a large Addition to them, he would not stop his Hand, ’till he had made them pay for all their Extravagancies. Odyss. Lib. XXII. v. 62, &c.Cassiodore observes, that When we have waved our Right of punishing, we ought at least to suffer no Damage. Ut qui vindictam remisimus, damna minimè sentiamus, Lib. V. Epist. XXXV. See below, Chap. XVII. XX. Grotius.
[5. ]Vindicationes, or Actiones in rem. See Note 4. on Pufendorf, B. IV. Chap. IX. §8.
[6. ]Such are, as the learned Gronovius observes, First, Condictio causâ datâ, or ob causam dati, causâ non sequutâ. A personal Action for redemanding a Thing, which was given on a Condition which is not fulfilled. See Digest. Lib. XII. Tit. IV. De Condictione causâ datâ, &c. Secondly, Condictio ob turpem vel injustam causam, ibid. Tit. V. which is when any one redemands what was given for an unjust or dishonest Thing done by the Person who received it. Thirdly, Condictio indebiti, ibid. Tit. VI. A personal Action of what is not due; when a Man redemands what he has paid, thinking he owed it, tho’ he really did not. Fourthly, Condictio furtiva. A personal and civil Action on the Account of Theft. Lib. XIII. Tit. I.
[7. ]See Pufendorf, B. IV. Chap. XIII. § 5. Note 11. Second Edit.
[8. ]The Roman Lawyers by that Term understood certain Trespasses, in Consequence of which the Person is obliged to Indemnification, tho’ it was not committed with a bad Intention, or even was committed by another, without the least Concurrence of the Defendant. Thus a Judge was obliged to pay the full Value of the Loss of a Cause, to the Person whom he had condemned wrongfully, tho’ he passed a wrong Sentence only through Ignorance or Inadvertency. When any Thing was thrown out of a Window, the Person to whom the Chamber belonged, or who lodged in it without paying Rent, was answerable for the Damage, tho’ done without his Knowledge, by one of his Servants, or any other Person. A Master of a Ship, one who keeps a Publick House, or a Stable, were responsible for whatever was stolen from, or spoiled in, the Vessel, House, or Stable, tho’ they themselves had no Share in the Theft or Damage. This was termed Quasi Maleficium, or Quasi Delictum; because there was a Sort of Fiction in such Cases, by Vertue of which a Person was judged culpable, tho’ not really so. See Instit. Lib. IV. Cap. V. De obligation bus, quae quasi ex delicto nascuntur.
[9. ]This Term, in the Roman Law, signifies those Causes which concern certain Crimes, wherein the Publick is more particularly and directly interested; for which Reason every Citizen was allowed to appear in the Character of Accuser on such Occasions. Of this Sort were Treason, Adultery, Murther, Parricide, Forgery, publick or private Violence, Peculation, the Crime of those who monopolize and raise the Price of Goods, &c. Instit. Lib. IV. Cap. XVIII. & ult. De publicis Judiciis.
[10. ]These Words of Camillus are not part of a Declaration of War, but of a Speech to his Soldiers, He exhorted them, says the Historian, to retrieve the Glory of their Country by the Sword, not by Gold; fixing their Eyes on the Temples of their Gods, on their Wives, their Children, on their native Land disfigured with the Calamities of War, and every Thing that might be lawfully defended, redemanded, and punished, &c. Livy, Lib. V. Cap. XLIX. Num. 3.
[11. ]Alcibiad. p. 109. Tom. II. Edit. H. Steph.
[12. ]De Benef. Lib. III. Cap. XIV.
[13. ]Livy, Lib. I. Cap. XXXII. Num. 11.
[14. ]This is spoken by a Tribune of the People. Orat. Marci Licinii, Cap. X. Fragm. Lib. III. p. 50. Edit. Wass.
[15. ]The whole Sentence runs thus, The usual Definition of just Wars, is, that they are undertaken for revenging Injuries; when any Nation or State, on which War is to be made, either has neglected the Punishment of its own Delinquents, or the Restitution of what was taken away unjustly, Lib. VI. Quaest. X. on Joshua. This Passage is quoted in the Canon Law, Caus. XXIII. Quaest. II. Quod Bellum sit justum, &c. Can. 2.
[16. ]Servius has observed, that when the Romans designed to make War, the Chief of the Heralds appeared on the Frontiers of the Enemy, and, after some previous Solemnities, declared with a loud Voice, that he proclaimed War for certain Reasons; either because they had injured the Allies, (of the Roman People) refused to restore the Cattle they had seized, or give up the Offenders. On Aeneid. Lib. IX. v. 53. Grotius.
[17. ]That Prince being informed, that the Queen was marching toward him, sent an Embassy with this Accusation. Lib. II. p. 74. Edit. H. Steph. Cap. XVIII.
[18. ]Livy, Lib. V. Cap. XXXV. Num. 5.
[19. ]Analytic. post. Lib. II. Cap. XI. p. 171. Ed. Paris.
[20. ]Lib. VII. Cap. VI. Num. 11.
[21. ]Plutarch says, that Hercules, by defending himself, conquered all whom he engaged. In Vit. Niciae (p. 539. Tom. J. Edit. Wech.) And Josephus, That such as begin the Attack unjustly, on Persons not aware of the Design, force the injured to take up Arms in their own Defense. Antiq. Jud. Lib. XVII. (Cap. XI. p. 604. Edit. Lips.) Grotius.
[1 ]In Chap. II. § 3. of the foregoing Book. See Pufendorf, B. II. Chap. V.
[2. ]Bonâ fide militet. The Author means those who serve their Sovereign in a War which they sincerely think just, tho’ it is not really so. See Chap. XXVI. of this Book. Pufendorf, B. II. Chap. V. § 5. misunderstands our Author, as if he had in View the Case of a Soldier, who takes his Comrade for one of the contrary Party; which Case is specified in the Words immediately following, aut alium me putet quàm sim. The learned Gronovius also gives the Words in Question a wrong Explanation, and supposes them spoken of every Soldier, listed in Form.
[3. ]We may here add the Example of such as walk in their Sleep. See my first Note on Pufendorf, B. I. Chap. V. § 11.
[1 ]See Pufendorf, B. II. Chap. VI. § 4.
[2. ]The Laws of Charity, however understood, require us to love our Neighbour as ourselves, not more than ourselves, which we should do in the Case before us, and others of the like Nature. See our Author, B. I. Ch. III. § 3. All other Things being equal, the Care of our own Preservation is certainly allowed to take Place of the Care of another Man’s. The Observation of Thomas Aquinas, which our Author alledges, and approves of afterward, ought with much more Reason to be applied in this Case.
[1 ]See a good Use of this Distinction in Agathias, Lib. IV. Cap. I. II. in relation to the Murther of Gubazes. Phrynichus, General of the Athenians, said he ought not to be blamed, if, finding his Life in Danger, he did all in his Power to avoid being destroyed by his Enemies.Thucydides, Lib. VIII. (Cap. L. Edit. Oxon.) Grotius.
[2. ]De Offic. Lib. I. Cap. VII.
[3. ]De Expedit. Cyri, Lib. II. Cap. V. § 2. Edit. Oxon.
[4. ]Aulus Gellius, Noct. Att. Lib. VII. Cap. III. p. 382. Edit. Jac. Gronov.
[5. ]Idem. ibid. p. 383.
[6. ]Orat. pro Tullio, apud Quintilian. Instit. Orat. Lib. V. Cap. XIII. p. 315, 316. Edit. Obrecht.
[7. ]Your Husband. It ought to have been rendered My Husband; for it is Merope, Sister-in-Law to Polyphontes, who speaks thus to that Prince, guilty of her Husband’s Murther. Our Author, however, has committed the same Mistake, in his Excerpta ex Trag. & Com. Graecis, published since this Work, p. 390. The two Verses may be seen in Aulus Gellius, as more than once quoted; and Mr. Barnes places them among the Fragments of a lost Tragedy, entitled Cresiphontes.
[8. ]The Historian’s Words are these, What may happen in Regard to the War (which the Corcyreans apprehending, exhort us to begin the Attack) is as yet uncertain, &c. Lib. 1. Cap. XLII. p. 26. Edit. Oxon. Where our Author, as is evident, makes a general Maxim of what was said on Occasion of the Fear of a particular War.
[9. ]Lib. III. § 82. p. 195.
[10. ]In a Discourse, where she gives Augustus Advice for his Conduct, Lib. LV. p. 640. Edit. H. Steph.
[11. ]Lib. III. Cap. LXV. Num. 11.
[12. ]Thus Caesar, having made himself Master of the Commonwealth, declared he was forced to take that Step by the Fear he entertained of his Enemies. We have a beautiful Passage on this Occasion, in Appian of Alexandria, Bell. Civil. Lib. II. Grotius.
[13. ]This Question was put to one who appeared armed in the Forum, and pretended he did it out of Fear. Instit. Orat. Lib. VIII. Cap. V. p. 723. Edit. Burman.
[14. ]Inter os & offam. This old Proverb is set down by A. Gellius, on which he quotes the Words of one of Cato’s Speeches, Saepe audivi, inter os & offam multa intervenire posse. Noct. Attic. Lib. XIII. Cap. XVII. See also Erasmus, in his Adages.
[1 ]Compare this Paragraph with Pufendorf, B. 2. Chap. V. § 10.
[1 ]See the Place last quoted from Pufendorf, § II. and what I have said in Note 1, on the Abridgment of The Duties of a Man and a Citizen. B. I. Chap. V. § 22. in the third and fourth Edition.
[2. ]Seneca places Liberty, Chastity, and a sound Understanding, after Life, without which three valuable Things a Man may indeed live, but so as that Death would be preferable. De Benefic. Lib. I. Cap. XI. St. Augustin observes, that The Law allows the Killing of a Ravisher, either before or after the Action, in the same Manner as it permits a Man to kill a Highwayman, who attempts our Life. De Lib. Arbitr. Lib. I. (Cap. V.) Grotius.
[3. ]It hath been doubted, whether our Author could find any Passage in Scripture, from which he might infer what he advances here without quoting any Text. It appears from his Notes on the Old Testament, that he had the following Law in View, If a Man find a betrothed Damsel in the Field, and force her, and lie with her, then the Man only who lay with her shall die; but unto the Damsel thou shalt do nothing; there is in the Damsel no Sin worthy of Death; for as when a Man ariseth against his Neighbour and slayeth him, even so is this Matter. Deut. xxii. 25, 26. It must, however, be acknowledged, that it cannot be directly concluded from those Words, that Chastity and Life are of the same Value. For the Legislator means only, that in the Case before us, a Damsel is no more culpable than a Man who is killed by Highwaymen; for she is supposed to have had no more Power to defend herself against the Brutality of the Ravisher, than a Person murdered had against the Ruffians. Mr. Le Clerc gives this Explication in his Paraphrase.
[4. ]He expresses himself in the following Manner, He who kills a Robber attempting his Life, or a Ravisher, is not to be punished. For the one defends his Life, and the other his Chastity, by an Action in which the publick Good is concerned, (publico facinore). Recept. Sent. Lib. V. Tit. XXIII. Ad Leg. Cornel. de Sicariis, &c. § 3.
[5. ]We read also, that Mars, who had killed a Son of Neptune, for attempting the Chastity of his Daughter, was cleared in the Areopagus, by the Judgment of twelve Gods. ApollodoreBibliotheca, Lib. III. (Cap. XIII. § 2. Edit. Gall.) Add to this a remarkable Story in Gregory of Tours, Lib. IX. Grotius.
[6. ]Book I.
[1 ]The Author has no where said this, at least formally and directly. It may indeed be barely inferred from what he insinuates in Chap. II. of the first Book, § 9. and Chap. III. § 3.
[2. ]That is, they are of Opinion that in such a Case a Man is not allowed to let himself be killed; and, according to their Way of Reasoning, Patience is so far from being commendable, that it is really vicious, on Account of the Injury done to those to whom his Life was useful.
[3. ]But if the Obligation to Patience doth not extend thus far, as our Author acknowledges, why should not a Man be bound to preserve a Life that is useful to several others, and what should oblige him to sacrifice their Interest, as well as his own, to that of a Villain? In Reality, the Care of defending one’s Life is a Thing to which we are obliged, not a bare Permission. See my 5th Note on Pufendorf, B. II. Chap. V. § 2. Second Edition; and what that Author says in § 14. of the same Chapter.
[4. ]Pharsal. (Lib. V. ver. 685, &c.) Thus Craterus remonstrates to Alexander the Great, that, while he exposed himself to such evident Dangers, he forgot that he drew after him the Ruin of so many Souls.Quintus Curtius, Lib. IX. (Cap. VI. Num. 8). Grotius.
[1 ]See B. I. Chap. I. § 9.
[2. ]I should think that Charity, that is, the Interest of others, and of a great Number, should not indispensibly be allowed the Preference to Self-Preservation, so strongly recommended, and in some Manner prescribed by Nature, unless such Interest is in itself very considerable, and certain. Now, on a careful Enquiry into the Cases which may happen in the Question before us, I am confident it will appear, that the Advantage which may accrue to another, from a Man’s submitting to be killed, is very far from being considerable and certain enough to oblige us to sacrifice our own Life to it. Besides, in such Sort of Cases, where a Man is in Danger of being killed, he is so affrighted, that he is not capable of enquiring whether it is advantageous to the Publick, or not, to permit himself to be killed, rather than kill the Aggressor.
[3. ]All that the Nature of Sovereignty, well understood, requires, is, that it should not be forfeited for all Manner of Faults, or for every Abuse of Power: But there are some Acts of Injustice directly contrary to the End for which Sovereignty is established; and consequently, whenever the Sovereign wilfully and diliberately proceeds to such Excesses, he forfeits his Right, at least in Regard to the Persons injured. Of this Sort is the Case of a Prince, who, without just Cause, attempts the Life of one whom he ought to protect and defend against all such as shall attack him in the same Manner. See my first Note on Book I. Chap. IV. § 2.
[4. ]True: But when this Advantage fails considerably, and such a Prejudice arises as is evidently contrary to the End for which a Thing was established, who can doubt but that then the Thing itself is destroyed.
[5. ]It is certain that a Regard is to be had for the Interest of others, and especially for that of a considerable Number; and that we are sometimes obliged to sacrifice our own Interest to it. But the Question is, Whether we have sufficient Grounds for believing that a Prince, who is guilty of the Extravagance under Consideration, is useful to Society? I therefore still adhere to what I have said in my first Note on Pufendorf, B. II. Chap. V. § 5. of the second Edition.
[6. ]See Seneca, De Benefic. Lib. I. Cap. I. and Lib. IV. Cap. XVI. where he confutes this pernicious Opinion. Grotius.
[7. ]De Clementiâ, Lib. I. Cap. IV.
[8. ]According to Plutarch, The principal Act of Virtue is to preserve him, who preserves every Thing else. Vit. Pelopid. (p. 278. Tom. I. Edit. Wech.) Cassiodorus, (or rather Peter of Blois) says, that If the Hand, by the Assistance of the Eyes, perceives a Sword ready to fall on any other Part of the Body, it receives the Sword, without regarding its own Danger, and shews more Concern for another Limb than for itself:—Consequently, those who save their Master’s Life, at the Expence of their own, do well, if in this Case they consider the Safety of their own Souls, more than the Deliverance of another Man’s Body. For as Conscience tells them they ought to be faithful to their Master, it seems reasonable that they should prefer his Life to their own. From all which he concludes, that A Man may safely expose his Body to Death, out of a Principle of Charity, especially for the Preservation of a great Number.Grotius.
[9. ]De Offic. Lib. III. Cap. III.
[10. ]De Benef. Lib. VI. Cap. XXXVII.
[1 ]On this Question see Pufendorf, B. II. Chap. V. § 12. and Mr. Vander Muelen, on this Paragraph of our Author.
[2. ]Apollodorus tells us, that Linus, the Brother of Orpheus, coming to Thebes, and being made free of that City, was killed by Hercules, whom he had struck; and that Hercules being tried for Murther, pleaded the Law of Rhadamanthus, which acquitted such as defend themselves against an unjust Aggressor. Biblioth. Lib. II. (Cap. IV. § 9. Edit. Paris Galei.) Grotius.
[3. ]Ziegler observes, that that Spanish Lawyer doth not maintain what our Author charges him with, and that he reasons on a Supposition that there was no positive Divine Law in this Case, which deprives us of the Right which each Man hath by Nature.
[1 ]SeePufendorf, B. I. Chap. V. § 16. and what I have said on the Abridgment of The Duties of a Man and a Citizen. B. I. Chap. V. § 23. third and fourth Edition.
[2. ]Orat. adversus Aristocrat. p. 436. Edit. Basil. 1572.
[1 ]This is examined both in the Text, and Notes on Pufendorf, B. II. Chap. V. § 17, 18.
[2. ]See B. I. Chap. III. § 2.
[3. ]This is quoted in the Place last referred to.
[4. ][See the same Place.] To these may be added a Law of the Wisigoths, Lib. VII. Tit. II. Cap. XVI. and the Capitulary of Charlemagne, Lib. V. Cap. CXCI. One of the Laws of the Lombards allows a Man to kill a Person who enters his Court-Yard in the Night, except he submits to be bound. Grotius.
[5. ]If a Thief enters a House by Night, with an Intent to steal, and he be taken and killed, let the Slayer be reckoned innocent. De Legib. Lib. IX. p. 874. Tom. II. Edit. H. Steph.
[6. ]This is not the Spirit of those Laws. On the contrary, they evidently suppose, that the Defence of a Man’s Goods, when there is no other Way for preserving them, authorizes him to kill the Thief, as fully as the Defence of Life. As to the Thought itself, that we ought not to kill any one precisely and directly for the Preservation of our Goods, it can be allowed only in this Sense; that he who finds a Thief in his House, ought not directly and principally to propose killing him, but only making Use of that Right which every Man hath to preserve his own Property, on default of all other Means. Now this will hold good in Relation to an Aggressor, who attempts our Life, as has been observed, § 4. Our Author is not entirely consistent with himself on this Subject. He will not allow a Man to kill a flying Thief, for the Recovery of his Goods, because that would be doing it directly and precisely, for the Preservation of his Property; and yet in the following Period, he says one may kill him, either with a View of taking from him what he has stolen, or securing the Thief himself. In which Case the Thief is supposed to fly, and consequently, that the Life of the Person robbed is not in Danger. Besides, Pufendorf has very well observed, that, if it is not allowable to kill any one precisely and directly for the Preservation of the Goods which he attempts to steal, or actually carries off, neither will it be allowable to defend or endeavour the Recovery of our Goods, so far as to put ourselves under a Necessity of Killing the Thief, who, rather than quit his Prize, attacks our Life, which he had at first no Design to attempt.
[7. ]Si fugientem telo prosternerem, &c. Thus the Words stand in all the Editions of the Original: But I am pretty well assured there is a Word omitted, and that we ought to read, si fugientem inermem telo prosternerem, &c. as the Sequel of the Discourse evidently requires. For we must suppose the Thief unarmed, in Order to make this Case different from the following, where the Thief likewise endeavours to escape, and it is in this that our Author grounds the Difference between a Night Thief and a Day Thief. As to the Substance of the Question, our Author’s Opinion still remains exposed to the Objection offered in the Close of the foregoing Note.
[8. ]This Consequence is not just. All that can be inferred, is that the Laws of the Twelve Tables supposed it hardly possible to recover one’s Goods in the Night, but by killing the Thief, because commonly speaking, we do not know the Thief, and consequently, if we permit him to proceed, or escape, we have no Means left for recovering what he takes; and if the Thief is known, we have abundant Reason to believe he will make off, and evade Prosecution: Whereas in the Day Time, when the Thief quits his Booty, as soon as he perceives himself discovered, it is commonly easy to know him, or apprehend him, with the Assistance of the Neighbourhood. But, as it is possible that a Day Thief, in Hopes of escaping with his Prize, may run all Hazards, and defend himself by Force of Arms, in that Case the Law allows the Proprietor to kill him, because he has then as much Reason to fear the Recovery of his Goods, as if the Attempt was made in the Night; especially when the Thief is not known.
[9. ]Digest. Lib. XLVII. Tit. II. De Furtis, Leg. LIV. § 2.
[10. ]Digest. Lib. XLVIII. Tit. VIII. Ad. Leg. Cornel. de Sicarii, &c. Leg. IX. Mr. Noodt, in his Probalia Juris, Lib. I. Cap. IX. and his Treatise, Ad Legem Aquiliam, Cap. V. has given very plausible Reasons for proving that Tribonian has misplaced this Law, and that it ought to appear under the Title of the Aquilian Law, which relates to the Reparation of Damages done by one who had killed another Man’s Slave, caught in the Act of Stealing, and not the Punishment of Murther. His Opinion is grounded on the following Considerations. First, The Cornelian Law punished only such Murthers as were committed maliciously and deliberately (dolo); and in Particular, with Regard to that in Question, it was entirely conformable to the Laws of the Twelve Tables, which allowed of Killing a Night Thief, without any Distinction of Cases; as appears from Cicero’s Oration in Defence of Milo, Cap. III. Ulpian, Collat. Legum Mosaïc & Roman. Tit. VII. § 2. Paul, ibid. ex Lib. V. Sententiarum. Ad Leg. Cornel. de Sicariis, &c. Tit. XXIII. § 9. To which may be added a Passage of St. Augustin, quoted in the Decretals, Lib. V. Tit. XII. De Homicidio volunt. vel casuali, Cap. III. Ulpian, indeed, in the Place already specified, and in another of his Fragments. Digest. Lib. IX. Tit. II. Ad Leg. Aquiliam, Leg. V. seems to say, that the Man who kills a Night Thief, whom he might have apprehended, incurs the Penalty of the Cornelian Law. But it is probable, that that antient Lawyer inadvertently wrote Lege Corneliâ, instead of Lege Aquiliâ, as the learned and judicious Professor thinks, whose Opinion I am giving. Perhaps, the Transcribers having made this Mistake in one of the two Fragments, it was copied in the other, with a View of correcting the Text; or perhaps the Transcribers have actually committed the same Fault in both Places; for all this is possible, and there may have been other Causes, of which we are ignorant. Secondly, The Law under Consideration, is taken from Book XXXVII. on the Edict of the Pretor. Now it appears from several other Passages in the same Book, quoted elsewhere, that it doth not treat of Murther, or any other publick Cause, but of some private Causes only. Thirdly,Ulpian’s Fragment, preserved in the Collatio Leg. Mosaic. & Roman. speaks only of the Aquilian Law, both before and after these Words, Ergo etiam Lege Corneliâ tenebitur, nordoth it appear to what Purpose they are inserted. So that it is highly probable here is a false Reading; and, consequently, that in the ninth Law, Ad Legem Corneliam, &c. which belongs to the same Lawyer, impunè ferre, signifies no more than to be exempt from paying Costs and Damages. We find innoxium esse in the same Sense, Tit. de Lege Aquiliâ, Leg. XLV. § 4. I add that the Adverb impune is used to express the same Thing, by Marcellus, the Lawyer, when he says, that if a Man who has promised another a Slave, takes him in the Fact, he may kill him with Impunity, (impunè) and the Person to whom he stands engaged, shall be allowed no Action for Damages, (utilis Actio). Digest. Lib. XLV. Tit. I. De verborum obligat. Leg. XCVI. But, whatever becomes of this Question, Mr. Noodt’s Reasons seem to me well grounded, even after the Perusal of Mr. Van de Water’s Objections against them, in his Observationes Juris Romani, Lib. I. Cap. XVIII. The famous Mr. Schulting, Mr. Noodt’s Collegue and Relation, owns that Ulpian’s two Fragments treat of the Aquilian Law; but he has some Difficulty in allowing the Cornelian Law to be erased from this Place, where it is said it is improperly mentioned. In Order to this, he restrains the Generality of the Terms employed by the old Lawyer; and, after all, he acknowledges the Explication of the Passage very difficult, supposing no Mistake in it. See what he says on that Subject, in his excellent Notes on the Jurisprudentia ante Justinianea. p. 760.
[11. ]Digest. Lib. IX. Tit. II. Ad Leg. Aquil. Leg. IV. § 1. From what has been said in the foregoing Note, it appears that this Condition cannot be enjoined by the Law of the Twelve Tables, which absolutely permitted a Man to kill a Night Thief. Mr. Noodt likewise offers some very plausible Reasons, in his Observ. Lib. I. Cap. XV. for proving that this doth not relate to the Punishment of Murder, ordered by the Cornelian Law, but to the Reparation of Damages, which belongs to the Aquilian Law; and that even in that Point, the Lawyers had softened the Rigour of the Law, by insinuating, that it ought to be reckoned sufficient, that a Man, who finds another Man’s Slave attempting to rob him in the Night, cries out before he kills him; whereas before it was very difficult to prove a Man obliged so to do by the Necessity of defending his own Life, and consequently avoid making his Master a Recompence, if there was any Means left of securing one’s self from the Danger without Killing the Slave. Others, as James Godfrey, (ad LL. XII. Tab. p. 58.) and Mr. Schulting, (Jurip. Antejust. p. 508, 759.) chose rather to consider the Words, ut tamen id ipsum cum clamore testificetur, as an Addition made by Tribonian. But which Opinion soever is followed, our Author’s Thought is still equally ill grounded.
[12. ]Page 265. Edit. Basil. 1572.
[13. ]Philo the Jew, explaining this Law, judiciously observes, that the Difference of Places is specified only, as the most common Example of Cases in which a young Woman is forced; not that a Regard is always to be had to this single Circumstance, in condemning or clearing her. For, says he, it may happen that a Man may hinder a young Woman from crying out, before he ravishes her, tho’ the Fact is committed in the Middle of a City; and a young Woman may consent to be debauched in the Fields. De specialib. Legib. (p. 788. Edit. Paris.) Grotius.
[1 ]All that can be inferred from our Saviour’s Words, and those of the Apostle, is, that when the Thing in Question is of but small Consequence, we ought not to kill the Thief, who attempts to take it, or is carrying it off. But when a Man finds a Thief in his House, he doth not immediately know he has taken a Thing of small Value; he hath very good Reason to presume the contrary; for Persons of that Character do not usually leave the best Goods; and even tho’ at first he had a Design on one certain Thing only, it is well known that Opportunity makes the Thief.
[2. ]See § 12. Note 6.
[3. ]De Lib. Arbitr. Lib. I. Cap. V. But he is not there speaking of Goods; his Discourse runs only on the Defence of Life or Honour, as appears from the preceding Words.
[4. ]St. Jerom, in his Life of Malchus, observes that Since the Church began to have Christian Magistrates, it became more considerable for Riches and Power, but less so for Virtue. See the Decretals, Lib. V. Tit. XII. De Homicidio Volunt. Cap. X. and Distinct L. Ecclesiastici criminosi, &c. Can. XXXVI. Grotius.
[5. ]Our Author speaks here of the Liberty with which Ecclesiasticks have been indulged in the later Ages, of making War, and commanding Armies; whereas, according to the antient Discipline, they could not even kill a Man in their own Defence, without incurring the Penalties specified in the Canons. See Conradus Rittersus, Dissert. Juris Civil. & Canon. Lib. VI. Cap. VI. and Lib. VII. Cap. XIII. as also the Authors above quoted, B. I. Cap. V. § 4. Note 2.
[1 ]See Pufendorf, B. VIII. Chap. III. § 26.
[2. ]See Gregory of Tours, Lib. X. Cap. X. John of Salisbury, Policratic. Lib. I. Cap. IV. Peter of Blois, Epist. CXXIX. concerning such Laws as punished Peasants with Death for Hunting. Grotius.
[3. ]It gives a real Right, in all Cases, where the Action is allowed by the Law of Nature, and the Rules of Charity well understood.
[1 ]Some of our Author’s Commentators on this Place fight with their own Shadow, undertaking to refute him at large, as if he meant to speak of Duels, properly so called; whereas it is evident, he treats only of what we term Rencounters, or Cases in which a Man is unexpectedly attacked, without any Appointment.
[2. ]See my Discourse on the Nature of Lots, § 20.
[1 ]Ammian Marcellinus says, It is an universal and perpetual Law, that no Custom can deprive us of the Right of Defending ourselves by all Means in our Power, when attacked by foreign Arms. Lib. XXIII. (Cap. I.) The Emperor Alexander Serverus spoke thus to his Soldiers on the Subject, An unjust Aggressor has no good or plausible Excuse for his Conduct; but he, who repels such an Aggressor, receives Confidence from the Goodness of his Conscience, and hopes for Success, because he is doing no Injury, but is only acting in his own Defence.Herodian, Lib. VI. (Cap. III. Num. 8, 9. Edit. Boecler). Grotius.
[2. ]Ubi cessant Judicia. Our Author means in the Time of a Civil War.
[3. ]See B. II. Chap. XX. § 8.
[4. ]In the Place quoted § 39.
[1 ]See B. II. Chap. XXII. § 5. and Pufendorf, B. II. Chap. V. § 6. and B. VIII. Chap. VI. § 5. Boecler observes, that Alberic Gentilis, whom our Author has here in View, as appears by the marginal Quotation, is at the Bottom of the same Opinion with him.
[1 ]See Pufendorf, B. I. Chap. V. § 19. and B. V. Chap. XIII. § 1.
[2. ]Livy, Lib. IX. Cap. I. Num. 3, 4, 7, 8.
[3. ]The Author here changes the Persons, and attributes to the Thebans, what the Greek Orator says of the Lacedemonians. Besides, Aristides doth not even say that the Lacedemonians had offered the Thebans a reasonable Satisfaction; but only that the People last mentioned, had gained it by the Victory at Leuctra; for he is speaking of the Succours which the Lacedemonians demanded of the Athenians, when the Thebans, after that Victory, seemed resolved to compleat the Destruction of the vanquished. See Orat. Leuctrica, p. 98. Tom. II. Edit. Paul Steph. And Xenophon, Hist. Graec. Lib. VI. Cap. V. § 33, &c. Edit. Oxon.
[4. ]See what Zonaras says (Tom. III.) of the Prince of Chalepus (Aleppo) who had offered Argyropolus, the Roman Emperor, to remain quiet, and pay the Arrears of the Tribute due to him. Martin Cromer, in his History of Poland, Lib. XVII. relates something like this of those engaged in the Crusade. (p. 393. Edit. Basil. 1555.) Philip de Commines, in the seventh Book of his Memoires concerning the Swiss, who offered to make Charles the Bald Satisfaction for a Waggon-Load of Sheep-Skins, which had been taken from some Merchants. Grotius.